AILA Testimony on the Impact of Visa Approval Backlogs on Small Business

Statement of Palma R. Yanni, American Immigration Lawyers Association On The Visa Approval Backlog and Its Impact on American Small Business

Before the House Committee on Small Business

June 4, 2003
Washington, D.C.

Mr. Chairman and distinguished Members of the Subcommittee, I am Palma R. Yanni, President-Elect of the American Immigration Lawyers Association (AILA). I am honored to be here today representing AILA, the immigration bar association of more than 8,000 attorneys who practice immigration law. Founded in 1946, the association is a nonpartisan, nonprofit organization and is an affiliated organization of the American Bar Association (ABA).
AILA takes a very broad view on immigration matters because our member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students.

AILA appreciates this opportunity to testify today on the visa approval backlog and its impact on small business. At no time in memory have the delays in visa issuance been so acute, nor the impact so profound.  Visas that once took a day now take a month—if you’re lucky.  Visas that once took a month now take a year—if you’re lucky. 

How did we get to this point?  Largely for two reasons: the introduction of processes for the sake of having processes, with little regard for their effectiveness or impact; and inadequate funding for adjudications which if not properly responded to will leave these backlogs unaddressed. Few would argue that the introduction of additional security checks and precautions are not necessary or advisable.  But the key is to ensure that all agencies involved in the checks regard them as a priority, and that the agencies work together to avoid duplication and minimize error.  That has not been the case.  

When we talk about visa issuance, we usually mean the process by which a U.S. consulate or embassy abroad issues a document that enables a person to apply for admission into the United States for a particular purpose.  As I will discuss shortly, the delays in the visa issuance process alone can be monumental.  But, in many cases, visas for individuals critical to a small business cannot be issued until the Bureau of Citizenship and Immigration Services (BCIS), which used to be the Immigration and Naturalization Service (INS), has approved an underlying petition. 

The problem faced by businesses is that lengthy delays permeate all of these agencies.

Delays at the Consulate:  Let’s start at the consular stage and work our way backwards through the process.  Several factors have made the process of obtaining a visa so slow that many are opting not to travel to the United States at all.  Indeed, last fall the State Department had to raise its visa issuance fee by approximately 50% to make up for the shortfall in revenue created by the dramatic drop in the number of visa applicants. 

Security checks account for some of the more dramatic delays in visa issuance, as some have waited two, three or even eight months or more while the State Department awaits a reply from other agencies on security inquiries.   Again, few would argue that security scrutiny is unnecessary.  But many of these checks are conducted for reasons that seem inexplicable.  For example, persons coming to engage in activities relating to fields on the Technology Alert List are subjected to some of the lengthiest inquiries.  But many of the activities on this list push the edges of credibility as areas of security concern.  One can understand the need to make sure that additional bases are touched when a visitor’s activities will relate to “Reprocessing irradiated nuclear fuel to recover produced plutonium,” one of the entries on the list.  But, lengthy investigations of applicants who will engage in activities related to geography or landscape architecture, also on the list, are less easy to understand.

But beyond the rationality of who is subjected to these lengthy checks is the question of whether the checks should be so lengthy.  Most of the agencies involved in the Technology Alert checks are entities whose missions do not include the processing of applications, and therefore do not have the culture of time-critical response or the understanding of the importance of visa processing to the United States.  As a result, many of these security checks languish unattended for lengthy periods.

The same phenomenon occurs with respect to FBI checks.  The State Department will not issue a visa until it has heard an affirmative reply on requests that it submits to the FBI.  These requests are rarely based on actual intelligence information: instead, they have been based on the ethnicity and demographics of the applicant or on the fact that, when the Department checked the applicant’s name in its “CLASS” database, there was a “hit” indicating a possible problem. 

Most such “hits” turn out to be nothing:  either the applicant happens to have the same name as someone who is of concern, the entry in the database relates to something minor that is not a basis for denying a visa, or the entry is a mistake.  But all of these “hits” have to be checked.  And, that often means that the consul must wait for the FBI and CIA to reply on an inquiry.  Again, because the processing of visa applications is not perceived by these agencies as mission-critical, and because application processing is not something for which they have seen reason to invest in systems, replying to these inquiries is often not a priority.

A recent example from my own practice illustrates the problem. In March a physician who is practicing with a small hospital in a rural, medically underserved area went home to Central America for a brief vacation. He was trained in the United States, had received multiple previous visas, and had a security check done both by BCIS and the Department of State prior to the approval of his change of status to H. When he went to the U.S. consulate to obtain a new visa he was told there was a “hit” on his name, albeit with a different birth date, and he had to be fingerprinted and wait for the FBI to clear him before the visa was issued. The process took 60 days, and the community struggled without this desperately needed physician.

The result of all of this?  Visa delays.

Add to this the announcement two weeks ago that the State Department will now interview, with just a handful of exceptions, all nonimmigrant visa applicants,  That announcement was accompanied by an advisory to posts that they would have to handle this additional workload with existing resources:  no new personnel or facilities would be added.  Already, visa appointments at posts like London and Bern are backed up into mid-July, and it is expected that interviews at some posts will take months to schedule.

Since the State Department has no system for pre-clearing visa applicants, the checks that I discussed previously will not even begin until the visa interview has been held.  Thus, we can expect that it will not be long before it will take nine months or more to get a visa, as is the case already in some consulates. What small business can wait that long for a needed employee?

As I indicated, all of the above focuses on just the process for obtaining the visa abroad.  If the visitor is going to do any work in the United States, the company here will first have to petition on his or her behalf with the BCIS.  Delays on this end also are profound: it is no longer unusual for such a petition to take a year or more to clear the BCIS.

Delays at the Bureau of Citizenship and Immigration Services (BCIS): Like the consular process, the problems at BCIS stem from several causes.  BCIS’s predecessor, INS, developed a “backlog reduction plan” that was put in place to reduce the waiting times for the processing of many major types of petitions and applications.  Just when that plan was starting to make inroads into the backlog, the word came down that no application or petition could be completed until a check was completed through the Customs Service’s “IBIS” database, which contains information from a number of law enforcement agencies. 

The problem was that this database, long used by INS for security checks, was not tied in with INS databases.  So IBIS checks required a process separate and apart from the adjudication of the applications and petitions.  This check increased the time spent on each application by anywhere from 10 to 40 percent, depending on the application type.  Also, the IBIS checks result in the same kinds of “hits” as the CLASS checks that were discussed above at the consulates.  The agency must clear each and every hit by contacting the agency that provided the information, sometimes by having to repeatedly call local police agencies or other entities until they can get an answer.  As a result, applications with a “hit” can languish for months on end, only to find in the end that there is no impediment to approval. In my own practice, we have a case that has been pending since last July where we are certain there is no basis for the “hit.”

These database difficulties are exacerbated by other problems.  There is no way for the consul or the BCIS to update the databases when they have cleared a “hit” to indicate this clearance.  So, the negative information continues in the database, often feeding into other databases that will show a “hit” down the line.  Thus, even if the BCIS has ensured that the John Smith showing in the IBIS system is not the John Smith on the application, it has no means to notify the IBIS system, or any other agency in the process of this fact.  So, when Mr. Smith goes to the consulate to apply for his visa, very likely the CLASS system will show a “hit”, and the lengthy clearance process will begin all over again. 

These problems have recently been ever further exacerbated by a March 24, 2003 Federal Register notice in which the Justice Department declared that the FBI no longer is subject to the Privacy Act requirement that information that it enters into law enforcement databases be “accurate, relevant, timely and complete.”  Since information can be entered into these databases with no regard for its accuracy, we can expect even more errors in these databases, with no real means to correct them.

The database check problems, alone, rendered the backlog reduction plan no more than a distant dream.  But these are not the only factors that have created nightmarish backlogs at BCIS.  For the past several months, BCIS personnel were pulled from adjudication activities to register citizens of 25 predominantly Moslem countries under a program known as “call-in NSEERS”.  This ethnically-targeted program of questionable national security benefit absorbed thousands of work hours, thus further setting back efforts to catch up on backlogs, and in fact causing backlogs to grow.

Backlogs also have been created by a growing “culture of no” within the BCIS.  A memo issued last year by the then-Commissioner of INS, indicating that there would be “zero tolerance” for INS employees’ failing to follow procedure, was taken by many adjudicators to mean that they could be punished for approving cases.   As a result, many applications are subjected to “Requests for Evidence” asking often nonsensical and irrelevant questions.  These requests add weeks, if not months, to the process.  A small company is virtually guaranteed to receive such a Request.

Also, many applications that not along ago were considered easily approvable are now denied, invoking an appeal process that in itself can take one year or more.   Indeed, many of the applications now being denied are extensions or similar applications where, on the exact same facts and law, the request had been approved a couple of years ago.  These denials seem to happen most often to small businesses.

Examples: How acute are these backlogs?  A company based on the West Coast or in the Southeast can expect a petition for an H-1B to take six or seven months IF there is no Request for Evidence.  Since there likely will be such a request if the petitioner is a small business,  the actual processing time is more like ten months, assuming there is no denial and need for appeal.  

These companies can have their petitions processed much faster—within 15 days (plus the time for the Request for Evidence)—but that “premium processing” costs $1,000 extra, an amount that few small businesses can afford.

So, combining delays at the BCIS with delays at the consulate, it can take companies seven to nine months to obtain a simple H-1B (not long ago considered a two-month process) in the BEST of conditions:  no Request for Evidence, no database “hits”, no security clearance requirement.  But few cases seem to exist in the best of conditions anymore, so it is now typical for a company to have to wait more than one year to bring a critical expert to the United States to work on a project.

Examples of these situations abound:

• A Mexican national trying to establish a small business in the United States that initially would hire about 10 Americans cannot get started because the owner was faced with a “hit” in the CLASS database, due to an identity error caused by the double last names commonly used by Mexicans. He had to be fingerprinted, and the fingerprints sent to the FBI.  He’s been told to expect a minimum of 3 to 4 months for a reply from the FBI.  In the meantime, this business is losing contracts for export work from the intended U.S. operation.  It should be noted that this individual has been issued three U.S. visas in the past, and has no criminal record.
• A California biotech research company submitted an H-1B petition to the BCIS in November 2002 on behalf of a Russian scientist, to participate in a six-month collaborative program starting July 1, 2003.  The petition was not approved until May 28, 2003, and now the scientist would face another delay awaiting visa processing in Moscow, which undoubtedly would include a lengthy “Technical Alert List” check.  But this no longer matters:  the project has been cancelled because this key participant would not be able to arrive on time.  Yes, the company could have paid $1,000 for faster processing, but as is true for so many small businesses, this extra amount would have demolished the budget for the project.
• A small U.S. business that manufactures forensic document authentication software is missing key contract bidding opportunities because of the unexpected wait for a key manager from its overseas parent to obtain a visa interview.
• A small company operating small-town behavioral health centers has been desperately searching for a psychiatrist willing to serve in these areas.  They finally located a doctor who was completing residency training in the United States, but before they could even petition to the INS/BCIS for him, they had to have waived a requirement that he return to his home country of Jordan for two years.  That waiver, which first had to be cleared through the Agriculture Department and then the State Department, took one full year at those agencies, during which time the State Department conducted a “CLASS” database check.  The company decided it could pay the $1,000 premium processing fee for the H-1B petition, but this turned out to be wasted money because the then-INS refused to complete processing of the waiver under premium processing.  The waiver took seven months to clear INS.  At the end of April this year, the petition and waiver were finally approved and the doctor applied for the visa.  He has been told that the visa will take a few months because the State Department must once again run a security check on him.  This small business, and the small-town communities it serves, have waited for more than 2 years for this physician, and will still have to wait several months more.

There is no question that security must be a priority.  But that security must be pursued rationally, and its processes must take into account the need to keep trade and business flowing.  These uncertain economic times are when we most need America’s leading employers—small businesses—to flourish.  They cannot do so if their position in the international marketplace is undermined by bureaucratic delays, lack of coordination, inadequate funding for adjudications, and a culture of “no.”

28ts2012